Does the Constitution protect against wrongful conduct by the government or private citizens?
The government, not private individuals.
⚠️ Exceptions:
- Individual is performing a task traditionally performed exclusively by the state (e.g. running elections); or
- Individual and gov. are excessively intertwined
- Government must affirmatively encourage, facilitate, or authorize activity to constitute sufficient entanglement
What are 3 main powers Congress can use to limit discrimination by private citizens?
- 13th Amendment;
- Commerce Clause; and
- Federal purse power
Who does the Bill of Rights apply to?
- Federal government; and
- States via the Fourteenth Amendment Due Process Clause (most provisions, see incorporation card)
Which provisions of the Bill of Rights are not incorporated to the states?
-
3rd Amendment
- Right against quartering (only incorporated in 2nd Circuit)
-
5th Amendment
- Right to indictment by a grand jury in criminal cases; and
-
7th Amendment
- Right to a jury verdict in civil cases
Define
reverse incorporation doctrine
Equal Protection Clause is incorporated to the federal government via the Due Process Clause of the 5th Amendment
Test for strict scrutiny
Law will be upheld if:
- It is necessary to achieve a compelling/crucial government interest; and
- Is the least restrictive means possible to achieve that interest (narrowly tailored)
When is strict scrutiny triggered?
if law involves a suspect classification or fundamental right
Test for intermediate scrutiny
Law will be upheld if it is substantially related to an important government interest
What are the requirements for strict and intermediate scrutiny?
Strict scrutiny: Government must demonstrate the classification is necessary to achieve a compelling governmental interest and is narrowly tailored to achieve that interest.
Intermediate scrutiny: Government must demonstrate the classification is substantially related to an important governmental interest.
Test for rational basis review
Law will be upheld if rationally related to a legitimate government purpose
⭐️ Presumption of validity, any legitimate reason will be upheld as long as it isn’t completely arbitrary
Who bears the burden of proof in rational basis review?
Challenger; must prove that law is unconstitutional
What is Due Process?
- Requirement that the government cannot deprive its citizens of life, liberty, or property without due process of law.
- Two types: procedural and substantive
- Rooted in both the 5th and 14th Amendments
What does procedural due process require (generally)?
If government is depriving an individual of life, liberty, or property, individual must be given:
- Notice;
- Opportunity to be heard (i.e. hearing); and
- Decision by a neutral arbitrator
What constitutes deprivation of liberty?
Significant restriction on freedom of movement, action, fundamental rights, or any other rights guaranteed/provided by the Constitution
What constitutes deprivation of property interests?
Deprivation of a “legitimate claim of entitlement.”
Examples:
- Public education;
- Public employment (only if employee is tenured or can be fired for cause; “at-will” employment does not trigger due process);
- Welfare benefits; or
- Government-issued licenses
If a person has not yet received benefits, do they have a property interest in them?
No, can be terminated without due process
The court balances what 3 factors to determine the amount of process due?
- Importance of the protected interest;
- Risk of deprivation with current procedures and value of additional procedures; and
- Government burden (fiscal and administrative) to provide process
Is a hearing prior to terminating welfare benefits required?
Yes
Is a hearing prior to terminating disability benefits required?
No, only a post-termination evidentiary hearing
Is a hearing prior to terminating public employment required?
No, only a post-termination evidentiary hearing.
⚠️ Notice and an opportunity to respond to the decision-maker is required before termination.
Does the government need to provide notice before seizing personal property?
No, only real property
What is substantive due process?
Asks whether government has an adequate reason to deprive someone of their life, liberty, or property (i.e. substantive rights). If fundamental right, deprivation must pass strict scrutiny. If non-fundamental right, must only pass rational basis review.
More info: Substantive Due Process
Economic and most social welfare regulation is subject to what level of scrutiny?
Rational basis review (rationally related to a legitimate gov. purpose)
⭐️ Highly likely to be upheld. Court has not struck down economic regulation for violation of substantive due process since 1937.
What is the Contracts Clause?
Prohibits states from substantially impairing existing contract duties. Article I, Section 10.
⚠️ Congress can still restrict contracts that will be made in the future
A restriction on private contracts is subject to what level of scrutiny?
Intermediate scrutiny. Will only be upheld if it is:
- Necessary to achieve an important, legitimate public interest;
- Substantially related to that interest; and
- Narrowly tailored in promoting public interest
A restriction on government contracts is subject to what level of scrutiny?
Stricter scrutiny. Only upheld if:
- Necessary and reasonable to achieve an important, legitimate public interest;
- Least restrictive means necessary to promote that interest; and
- Necessary because of unforeseen circumstances
Define
Takings Clause
Prohibits government seizure of property without just compensation (Fifth Amendment). Also called “eminent domain.”
Two types: possessory and regulatory.
Is the Takings Clause applicable to states?
Yes, via the Fourteenth Amendment
What types of property interests are protected by the Takings Clause?
Real property interests:
- Fee simple
- Easement
- Leasehold estate
- Mortgage/lien
Personal property:
- Patent rights
- Trade secrets
- Contracts
What is a regulatory taking and what factors does the court weigh when determining if a regulatory taking occurred?
A government regulation that is so burdensome it essentially amounts to taking.
To decide if taking occurred, court weighs:
- Economic burden on the owner;
- Extent of interference with owner’s reasonable use and enjoyment; and
- Whether or not the taking benefits society (i.e. government’s interest in the taking)
What are two brightline types of regulations that constitute a taking? (“per se” takings”)
If regulation results in:
- Permanent physical occupation (no matter how minimal); or
- Deprivation of all economically viable use of the property
⚠️ Must deprive the owner of all economic value, a severe decline in value does not constitute a taking absent other factors (ex. prohibiting structures to be built on an island where you want to build your beach home probably constitutes an unconstitutional taking)
Takings for public use are subject to what level of scrutiny?
Rational basis review
What constitutes “just compensation” for a taking?
Fair market value of the property at the time of taking, measured in loss to the owner
What is an exaction and when does it constitute a taking?
Improper demand that a property owner give something to the community in exchange for zoning or development approval.
Constitutes a taking unless there is:
- Essential nexus between exaction and legitimate state interests; and
- Rough proportionality between burden on the developer and benefit to the public
Define
bill of attainder
Legislation that inflicts punishment on individuals or a designated group without a trial. Unconstitutional.
What is an ex post facto law?
Unconstitutional criminal law that either:
- Criminalizes conduct that was legal at the time it was done;
- Imposes a harsher penalty after crime is committed;
- Decreases prosecution’s burden of proof for crime; or
- Eliminates a defense available to D when crime was committed (ex. changing statute of limitations)
Where in the Constitution is the Ex Post Facto Clause found?
Contracts Clause
List the fundamental rights
- Right to travel (nationally);
- Right to vote; and
- Right to privacy
- Marriage
- Sexual relations
- Child-rearing/parenting
- Family members to live together
- Contraception
How do you determine whether regulation of a fundamental right violates substantive due process or equal protection?
- If right is infringed for all people: substantive due process
- If right is only infringed for certain classes of people: violates equal protection
Restrictions on fundamental rights trigger what level of scrutiny?
strict scrutiny
Restrictions on nonfundamental rights trigger what level of scrutiny?
Rational basis review
What does the right to contraception protect?
The fundamental right to buy and use contraception
Post-Casey, when are pre-viability restrictions unconstitutional?
When they impose an undue burden on a woman’s right to choose an abortion (“undue burden test” established by Casey).
Examples of undue burdens include:
- Spousal consent/notification requirements;
- Requiring parental consent without option for judicial bypass; or
- Requirements to record patient names
**2022 Update: Roe has been overturned by the Supreme Court in Dobbs vs. Jackson and the undue burden test no longer applies. However, the MBE will likely not have been updated since the Roe decision. Be prepared to answer questions on Roe and Casey.
What types of abortion laws do not place an undue burden on women?
Laws requiring:
- Parental consent with a judicial bypass option;
- Licensed doctors to perform abortions;
- 24-hour waiting period;
- Doctor to provide woman with truthful and non-misleading information about the procedure; or
- Ban on certain procedures (“D&X”)
**2022 Update: Roe vs. Wade has been overturned by the Supreme Court in Dobbs vs. Jackson, and the undue burden test no longer applies. However, the MBE will likely not have been updated since the Roe decision. Be prepared to answer questions on Roe and Casey.
What types of post-viability regulations are constitutional?
An outright prohibition on abortion and other substantial regulations are allowed as long as there is an exception to protect the life and health of the mother
**2022 Update: Roe vs. Wade has been overturned by the Supreme Court in Dobbs vs. Jackson, and this framework no longer applies. However, the MBE will likely not have been updated since the Roe decision. Be prepared to answer questions on Roe and Casey.
Is there a right to receive public funding for an abortion?
No
Do families have a fundamental right to live together?
Yes. Includes the right to live with extended family members.
Is there a right to possess obscene materials?
Yes, within one’s home.
⚠️ Exception: there is never a right to possess child pornography.
What are valid regulations of obscene material?
Restrictions on the sale, distribution, transportation, or receipt of materials
Are restrictions on residency requirements for in-state benefits constitutional?
Yes, can limit in-state benefits to in-state residents.
If durational requirement (e.g. must be a resident for 30 days to receive benefits), must be reasonable and short (1 year residency to be eligible for Medicaid is likely invalid)
